Hawaii-2017-SB394-Amended

SECTION 1. The legislature finds that it is important for property management companies to utilize client trust accounts and to have clear and effective rules pertaining to client trust accounts to avoid any mismanagement or commingling of client funds. Currently, a real estate broker could mishandle accounts or abruptly terminate business without sufficient protections in place to safeguard client information and trust account funds. Thus, further safeguards are necessary to protect funds held in client trust accounts.

The legislature finds that criminal penalties are an effective means to deter real estate brokers from mishandling client trust accounts. The legislature further finds that a principal broker should be required to report client trust account information to the real estate commission to ensure accountability and client access to the information.

Accordingly, the purpose of this Act is to:

(1) Create criminal penalties for real estate brokers for improper deposit, segregation, or disposition of client trust account funds;

(2) Require the principal broker to report the client trust account number and name of the managing institution to the real estate commission;

(3) Require the principal broker to report changes in the account number and account location within ten days of a change; and

(4) Authorize the real estate commission to take action in circuit court to enforce requirements pertaining to client trust accounts.

SECTION 2. Chapter 467, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§467‑ Criminal penalties. A person commits the criminal offense of theft if the person knowingly or intentionally violates this chapter or the rules adopted thereto related to the deposit, segregation, or disposition of client trust account funds."

SECTION 3. Section 467-1.6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The principal broker shall be responsible for:

(1) The client trust accounts, disbursements from those accounts, and the brokerage firm's accounting practices; provided that at the time of registration and renewal, the principal broker shall file with the commission the account number and the name of the financial institution at which the trust account is held, and the principal broker shall notify the commission of any change in the account number or location within ten days of the change;

(2) The brokerage firm's records, contracts, and documents;

(3) All real estate contracts of the brokerage firm and its handling by the associated real estate salesperson;

(4) The proper handling of any commission application, real estate license application, or renewal application that the principal broker or the brokerage firm expressly agrees to handle on behalf of the applicant, including without limitation, verifying for completeness and appropriate fees, and mailing or delivering the appropriate documents to the commission by the required deadline;

(5) Developing policies and procedures for the brokerage firm concerning the handling of real estate transactions and the conduct of the associated real estate licensees and other staff, including education and enforcement of the policies and procedures;

(6) Setting a policy on continuing education requirements for all associated real estate licensees in compliance with the statutory requirement;

(7) Ensuring that the licenses of all associated real estate licensees and the brokerage firm license are current and active;

(8) Establishing and maintaining a training program for all associated real estate licensees; and

(9) Ensuring that all associated real estate licensees are provided information and training on the latest amendments to real estate licensing laws and rules as well as other related laws and rules."

SECTION 4. Section 467-4, Hawaii Revised Statutes, is amended to read as follows:

"§467-4 Powers and duties of commission. In addition to any other powers and duties authorized by law, the real estate commission shall:

(1) Grant licenses, registrations, and certificates pursuant to this chapter;

(2) Adopt, amend, or repeal rules as it may deem proper to effectuate this chapter and carry out its purpose, which is the protection of the general public in its real estate transactions. All rules shall be approved by the governor and the director of commerce and consumer affairs, and when adopted pursuant to chapter 91 shall have the force and effect of law. The rules may forbid acts or practices deemed by the commission to be detrimental to the accomplishment of the purpose of this chapter, and the rules may require real estate brokers and salespersons to complete educational courses or to make reports to the commission containing items of information as will better enable the commission to enforce this chapter and the rules, or as will better enable the commission from time to time to amend the rules to more fully effect the purpose of this chapter, and, further, the rules may require real estate brokers and salespersons to furnish reports to their clients containing matters of information as the commission deems necessary to promote the purpose of this chapter. This enumeration of specific matters that may properly be made the subject of rules shall not be construed to limit the commission's broad general power to make all rules necessary to fully effectuate the purpose of this chapter;

(3) Enforce this chapter and rules adopted pursuant thereto[;], including the filing of any action in circuit court determined to be necessary by the commission to obtain an injunction or other appropriate order or judgment for the enforcement of any law or rule under this chapter relating to client trust accounts;

(4) Suspend, fine, terminate, or revoke any license, registration, or certificate for any cause prescribed by this chapter, or for any violation of the rules, and may also require additional education or reexamination, and refuse to grant any license, registration, or certificate for any cause that would be a ground for suspension, fine, termination, or revocation of a license, registration, or certificate;

(5) Report to the governor and the legislature relevant information that shall include but not be limited to a summary of the programs and financial information about the trust funds, including balances and budgets, through the director of commerce and consumer affairs annually, before the convening of each regular session, and at other times and in other manners as the governor or the legislature may require concerning its activities;

(6) Publish and distribute pamphlets and circulars, produce seminars and workshops, hold meetings in all counties, and require other education regarding any information as is proper to further the accomplishment of the purpose of this chapter;

(7) Enter into contract or contracts with qualified persons to assist the commission in effectuating the purpose of this chapter; and

(8) Establish standing committees to assist in effectuating this chapter and carry out its purpose, which shall meet not less often than ten times annually, and shall from time to time meet in each of the counties."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on January 7, 2059.

THE SENATE	S.B. NO.	394
TWENTY-NINTH LEGISLATURE, 2017		S.D. 1
STATE OF HAWAII